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Police seize legal guns and won’t give them back

The Michigan Supreme Court is considering whether to grant leave to appeal in a case where the police seized a mostly legal collection of weapons and decided to just keep them without seeking forfeiture.

Our story: Kurtis Minch kept a lot of weapons at his house. He had 87 of them in his arsenal.

Unfortunately for Minch, when the Fruitport police raided his house, they discovered an illegal short-barreled shotgun in his collection.

Minch pleaded guilty to a couple of weapons charges — possessing a short-barreled shotgun, MCL 750.224b, and possessing a firearm during the commission of the felony, MCL 750.227b. He didn’t expect that he would get any of the 86 legal weapons back, having pleaded to felonies, but he was very interested in what would happen to them.

The police are going to keep them — not forever — but just for a while, the Muskegon County prosecutor explained. Are you seeking forfeiture, Minch wanted to know. Nope, and we don’t intend to, the prosecutor said.

This didn’t seem right, so Minch asked Muskegon Circuit Court Judge Timothy Hicks to order the police to give the weapons to Cutler, Minch’s mother.

No problem, ruled Hicks.

On appeal, the prosecutor argued that “allowing the police to deliver the firearms to Cutler would be akin to allowing defendant to distribute them and that this action should be barred under MCL 750.224f.”

Not so, the Michigan Court of Appeals ruled.

The prosecution argues that if defendant is permitted to authorize the police department to dispose of the weapons on his behalf, the department would effectively be acting as defendant’s agent when it delivers the weapons to Cutler. However, the prosecution’s position fails to account for defendant’s due-process rights or previous decisions of this Court.

The Fruitport police have not instituted forfeiture proceedings, nor have they asserted that forfeiture proceedings would be proper. Therefore, denying defendant’s designee the right to take possession of the weapons would deprive defendant of his property without due process of law. Banks v Detroit Police Dep’t, 183 Mich App 175, 180; 454 NW2d 198 (1990); People v Oklad, unpublished opinion per curiam of the Court of Appeals, issued March 3, 2000 (Docket No. 206589).

Well, our case is different, the Muskegon prosecutor argued. There’s no due-process problem here because we’re not going to keep the weapons forever.

Okay, what are you going to do with them that won’t violate Minch’s due-process property rights, the COA wanted to know.

[The prosecution] fails to acknowledge that any other action the department could take, whether it be selling the weapons, melting them down, or retaining possession of them permanently, could only be accomplished through a forfeiture proceeding.

The MSC may take a look at all of this after Hicks decides whether Minch is entitled to appointed counsel and, if so, after the parties have briefed and argued the issues.